Dillon v. United States

• Decision Date: 16 January 2019
• Docket Number: CIVIL ACTION NO. 12-12289-DPW
• Citation: 357 F.Supp.3d 49
• Parties: Stephen DILLON and Michael Fisher and Others Similarly Situated, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

357 F.Supp.3d 49

Stephen DILLON and Michael Fisher and Others Similarly Situated, Plaintiffs,

v.UNITED STATES of America, Defendant.

CIVIL ACTION NO. 12-12289-DPW

United States District Court, D. Massachusetts.

Filed January 16, 2019

Brian Keane, Keane Law Group, P.C., Boston, MA, Dennis M. O'Bryan, Pro Hac Vice, O'Bryan Kaun Karamanian, Kirk E. Karamanian, Pro Hac Vice, O'Bryan Baun Cohen, Birmingham, MI, Steven B. Boris, Krasnow, Keller & Boris, P.C., Framingham, MA, for Plaintiffs.

Sarah Keast, Michael W. Kerns, Stephen M. Ketyer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

I. BACKGROUND

In the Third Amended Complaint now framing this litigation, Stephen Dillon and Michael Fisher, seamen who claim to have suffered injury on board government-owned vessels, allege that they, and similarly situated seamen, are entitled to unearned overtime wages as part of the unearned wages remedy under admiralty law. Cf. Padilla v. Maersk Line, Ltd. , 721 F.3d 77, 82-83 (2d Cir. 2013) (holding in class action that, in some circumstances, a seaman may be entitled to unearned overtime compensation as part of his entitlement to unearned wages under general maritime law).

Plaintiffs move for class certification and summary judgment for unearned overtime wages. At the threshold, I confront the government's contention that it is entitled to judgment against Dillon based on an affirmative defense unique to him.

Meanwhile, U.S. Marine Management, Incorporated ("USMMI"), the General Agent operating the vessels on the government's behalf, has been permitted to intervene in the action. USMMI has contended that, if the government is granted judgment against Dillon, the case must be transferred to the District of South Carolina, Fisher's residence. The government supports USMMI's contention and has moved to transfer the case to the District of South Carolina if judgment is entered against Dillon.

II. PROCEDURAL BACKGROUND

Dillon filed the first class action complaint in this case on December 10, 2012. He amended the complaint on February 25, 2013 and again on March 20, 2013. On November 18, 2013, he filed a motion for class certification. I denied his first motion to certify the class without prejudice on June 5, 2014. Dillon then filed a renewed motion to certify the class on December 12, 2014. I denied the renewed motion, again without prejudice, on February 11, 2015. My denials of class certification were based on concerns regarding whether Dillon's individual circumstances would interfere with his ability to be a suitable class representative.

Prior to the set of motions now before me, the parties also filed cross motions [Dkt. No. 51 – Dillon and Dkt. No. 63 – United States] for summary judgment on the government's affirmative defense based on Dillon's alleged failure to disclose his prior medical condition. I denied those prior motions from the bench, [See Dkt. No. 82], on February 11, 2015. I did so on grounds that those motions could not be resolved as a matter of law on the papers and fact-finding would be necessary. The government now presses for judgment on the same affirmative defense based on the fact-finding I have since conducted.

On May 11, 2015, with the agreement of the parties, I held an evidentiary hearing on the government's affirmative defense, effectively making the determination the subject of a non-jury trial. During the evidentiary hearing that day, Dillon testified and I am able consequently to assess his credibility. It was evident during that hearing that Dillon, despite offering several unpersuasive excuses and explanations, knew he was failing to disclose his prior medical condition and that if he had made proper disclosure, he would not have been offered the position on the vessel he held when he suffered a medical emergency.

Presumably in light of the testimony on July 27, 2015, Dillon's counsel, now also representing Fisher, brought an unopposed motion to permit Fisher to intervene as a named representative plaintiff and class representative. To his memorandum in support of his motion to intervene, Fisher attached a proposed third amended class action complaint. I granted Fisher's motion to intervene on February 1, 2016 and the Third Amended Complaint remains the operative pleading in this action.

At a status conference held on November 15, 2017, I continued to express my concerns about Dillon's ability to serve as a class representative. I further discussed with counsel the proposition that Fisher alone could potentially represent the putative class. On January 19, 2018, Plaintiffs filed a motion for class certification, [Dkt. No. 109], and a motion for summary judgment, [Dkt. No. 111], as to the overarching issue of liability for unearned overtime wages. That same day, the government filed its own motion for summary judgment on the merits regarding the claim of Michael Fisher. [Dkt. No. 113].

In connection with its earlier summary judgment motion submissions, the government had filed a separate motion, [Dkt. No. 55], under FED. R. CIV. P. 36(b) to withdraw an admission that provided the foundation for plaintiff's summary judgment contentions. In light of the decision's pertinence to the question of judgment as to Dillon now before me pursuant to non-jury trial procedure, this memorandum provides in Section IV a full explanation of my February 11, 2015 decision [Dkt. No. 82] to grant the motion to withdraw the admission.

On January 25, 2018, USMMI filed its formal motion to intervene in the action and specifically raised the question of proper venue, along with the potential need to transfer this matter if Fisher became the sole named class representative. The USMMI motion to intervene was unopposed and I granted it. The venue issue is now directly raised in the motion [Dkt. No. 141] of the United States to dismiss or transfer the case if Fisher were to become the sole named putative class representative. My findings and conclusions supporting judgment against Dillon in this litigation are set forth in Sections V and VI of this Memorandum. My reasoning for directing transfer is set forth in Section VII.

III. PERSONAL AND CLASS ALLEGATIONS

Dillon was employed by Maersk Line, Limited ("Maersk"), of which USMMI is a wholly owned subsidiary, to work on a government-owned vessel, the USNS LOPEZ. Maersk operates the vessel under contract with the United States Navy's Military Sealift Command. USNS LOPEZ is part of the Military Sealift Command's Preposition Program, which prepositions ships with military equipment and supplies in strategic locations so that they are available if needed. Maersk hires civilian merchant seamen as crew for vessels, like the USNS LOPEZ, that operate under contract with the government.

Dillon was hired to serve as a Qualified Member of the Engine Department, a physically demanding job. During the time that Dillon worked on the USNS LOPEZ, it was stationed in Diego Garcia, in the Indian Ocean. Dillon began his employment on the vessel on March 23, 2012 and was discharged on May 29, 2012 because of to a back injury. Dillon was medically repatriated to the United States.

After his injury, Dillon was paid maintenance and cure as well as unearned wages for the period of the vessel's voyage. He alleges that he had an expectation, based on the custom and practice aboard the USNS LOPEZ, that he would have earned and received overtime wages if he had continued to work on the USNS LOPEZ during the voyage. He was not paid any unearned overtime wages after his discharge.

Dillon initially brought this action on behalf of himself and others similarly situated who had not received unearned overtime wages after medical discharge. The proposed class consisted of civilian seamen who had been employed by civilian contractors and had served as crewmembers on vessels owned or chartered by the government and administered by the Military Sealift Command, who had suffered injury or illness in the service of the vessel, and who were paid maintenance, cure, and unearned wages but not the overtime wages they otherwise would have earned during the voyage.

Dillon is a resident of Massachusetts.

Fisher , a member of the American Maritime Officers ("AMO") union, was assigned by his employer, Maersk, to a position as second assistant engineer aboard the USNS HENSON. The USNS HENSON is a public Geographic Survey (or T-AGS) vessel owned by the United States and administered by the Military Sealift Command in its Special Mission program, also known as PM2. T-AGS vessels conduct acoustical, biological, physical, and geophysical surveys and provide much of the military's information on the ocean environment, helping to improve technology in undersea warfare and enemy ship detection.

The government contracts with commercial entities to operate certain public vessels on its behalf, including T-AGS vessels. The Military Sealift Command contracted with 3PSC LLC, which became a subsidiary of Maersk in mid-2012, to operate the USNS HENSON as well as certain other oceanographic survey vessels. 3PSC LLC entered into a collective bargaining agreement ("CBA") and certain subsequent memoranda of understanding with the AMO union.

Fisher boarded the USNS HENSON on February 26, 2015. Under the Articles of Agreement signed by Mr. Fisher, his assignment was not to exceed four months. This was Mr. Fisher's second assignment as a second assistant engineer aboard the USNS HENSON. He had previously served on the vessel for nearly four months from July 16, 2014 through November 13, 2014.

Fisher was injured aboard the USNS HENSON on June 16, 2015 and was deemed not fit for duty. He was subsequently discharged from the vessel on June 18, 2015. Following Fisher's discharge, Maersk paid him unearned wages in the amount of $231.88 per day — the amount of his daily base wages — through the end of his maximum tour on June 26, 2015. It did not pay him the unearned overtime wages that ...